“Supplementary letter. 1) Further to the decision letter dated14 October 2011 (DL), and following the grant of permission to claim Judicial Review by His Honor (sic) Judge Pelling QC on24 April 2012 , further consideration has been given to your claim in accordance with the guidance of the Court of Appeal in R (L) vs SSHD. 2) Your original basis for claiming asylum is set out in paragraph 7 of the DL. You have submitted what is described as a ‘fresh claim’ in a letter dated28 September 2011 and enclosed a number of documents including inter alia; a) Statement of (her son) dated23 September 2011 b) Statement of (herself) dated26 September 2011 c) Statement of (her sister) dated26 September 2011 d) Letter from Nicholas Mendes dated21 September 2011 3) Also enclosed with your letter of28 September 2011 are a number of letters concerning medical treatment received by (your son) whilst he has been in the UK, each of which has been considered. You have also provided 3 of your son’s school exercise books and a number of objective reports, each of which has been considered. In your letter dated28th September 2011 you have set out the history of your claim: a) You are a national of Iran and were raised as a Muslim; b) You were married to a strict Muslim man, a member of the Basij in Iran. You and your son suffered domestic violence at the hands of this man. One of the injuries you suffered at his hands resulted in a brain aneurism, which subsequently healed by itself. Your sister, who is a Christian convert, attributed this recovery to a miracle from Jesus; c) You came to the UK on a visit visa in ……………2007. You were accompanied by your son; d) Whilst in the UK you converted to Christianity. You were baptised on18 November 2007 . Your husband then discovered what you had done and because you were afraid of him, you claimed asylum in the UK on06 December 2007 . a) Statement of (her son) dated23 September 2011 b) Statement of (herself) dated26 September 2011 c) Statement of (her sister) dated26 September 2011 d) Letter from Nicholas Mendes dated21 September 2011 a) You are a national of Iran and were raised as a Muslim; b) You were married to a strict Muslim man, a member of the Basij in Iran. You and your son suffered domestic violence at the hands of this man. One of the injuries you suffered at his hands resulted in a brain aneurism, which subsequently healed by itself. Your sister, who is a Christian convert, attributed this recovery to a miracle from Jesus; c) You came to the UK on a visit visa in ……………2007. You were accompanied by your son; d) Whilst in the UK you converted to Christianity. You were baptised on18 November 2007 . Your husband then discovered what you had done and because you were afraid of him, you claimed asylum in the UK on06 December 2007 . 4) In your letter you then set out what is described in the letter as “the Fresh Asylum Claim”
“She claims to have continued as a Christian once she arrived in thic ountry, and there is evidence to that effect. But there are such discrepancies in the history put forward by the Appellant, that her appeal must fail. In short, on reflection, in the cold light of day, taking the case in the round, I am not persuaded that the Appellant has told the truth” (paragraph 15a) “…..had I found her a credible witness on other matters, I might have been persuaded in repect of the domestic violence. But the converse is so. In her witness statement, she made no reference to prior acts of violence by her husband. In her witness statement she referred only to acts of violence towards the son. In the asyluminterview again, there was no overt reference to violence…..” (paragraph 15 b) “….discrepancies in the evidence of the Appellant me persuade me that she was not telling the truth. I am not persuaded that her husband is even in the Basij, let alone has a rank within it……I am not persuaded that a man who had perpretrated domestic violence against his wife; a man who put his regime before his family, would be persuaded to assist the sister ……to escape from the regime…” ( paragraph 15 e) “ I do not believe a word that the Appellant has said about the attitude of her husband, nor his affiliations in Iran.” (paragraph 15 f) “ I am not persuaded that the husband is in the basij, nor that he has perpetuated domestic violence on the wife.” (sic)(Paragraph 15 g) “ either she has not been truthful in the visa applications form about her address, or her husband has sent these documents deliberately from what is their own address, conniving with her, to help in the asylum claim….;” (paragraph 15 i) “……On the one hand, the Appellant said that she believed her husband “ would not leave me alone” but on the other hand, she conceded that she had heard nothing from him for two and a half year. I contrast this with the discrepant evidence of the sister. She had made statements, and never mentioned that the husband had been in touch with her. Buit before me she said that she could not tell a lie, and, in effect, what she had said before was untrue. In fact, she said that the husband had been contacting her, the sister, until only four months ago. Thus it turns out that the siater 9who claims to be a devout Christian) has herself been telling lies, contradicts the Appellant, and I find myself unable to rely on the evidence of either of them as a result;” (Paragraph 15 j) “….Of course, that impinges on the evidence of the Appellant to claim to have become a Christian. If she has become a Christian she appears also not to flinch at being economical with the truth. She was telling lies in respect of a number of matters on oath…..I gained the impression that the Appellant was willing to say anything to ensure that her asylum claim succeeded, even if it was a pack of lies…..The lies had begun with the visit visa application, and continued in various statements to the authorities here and culminated in oral evidence;” (paragraph 15k) “I am satisfied that she has been to various meetings, and has persuaded church elders that she is a caring and loving person. I am not satisfied that she has converted to Christianity in any meaningful sense, and has undergone the outward appearance thereof, to assist an asylum claim, with the assistance of her sister.” (paragraph 15 i) Therefore, in summary; the Immigration Judge found that you were not the victim of domestic violence in Iran, that your husband was not in the Basij and that any demonstrable conversion to Christianity was simply an “outward appearance thereof, to assist an asylum claim”. 7) You have provided a witness statement from your son, that was not available to the Immigration Judge, corroborating your claims that your husband was a member of the Basij. The statements made by you, your son,…………and your sister …………..seek to add to the available facts in an effort to obtain a more favourable outcome. Furthermore the facts that are relied upon, are not materially different from those put to Immigration Judge Herwald. 8) You maintain that you and your son suffered domestic violence at the hands of his father, a member of the Basij following previous incidents of domestic violence. It is noted that that this claim was not accepted by the Immigration Judge. The Judge carefully considered the evidence and made findings. The determination sets out the evidence before the Tribunal and provides careful reasoning for the findings made. It is noted that there is nothing within your further submissions that undermine the findings made by Immigration Judge Herwald and his findings as to the credibility of the witnesses that he heard from. You have simply sought to add to your original claims by providing the witness statement from your son in which he states that his father was a Basij in an effort to obtain a more favourable outcome. 9) It is noted that your son’s statement refers to incidents that occurred some time prior to the hearing of your asylum appeal on13 May 2010 . It is noted that your son was aged over sixteen at the time of this appeal, and he had not yet experienced any issues with depression and anxiety which began in January 2011 (Dr J Van Niekerk’s letter dated13 September 2011 ). It is noted your son did not provide any evidence during your appeal hearing, written or otherwise. Therefore, when considered in light of his young age, the incentive of being able to remain living in the UK and the adverse credibility findings that have been made against you and your sister……………., the evidence you have submitted in the form of a statement by your son is considered to be self-serving and cannot be relied upon as confirmation of your husband’s position as a member of the Basij, or as evidence of a past history of domestic violence. 10) When the statements of yourself, your son and your sister are given anxious scrutiny and considered alongside the findings made by Immigration Judge Herwald about material aspects of your claim, it is considered that your further submissions merely amount to a disagreement with the findings of the Immigration Judge. As your account of your husband’s background and history of domestic violence is not accepted as true, it follows that you and your son would not be at risk on that basis on return to Iran. 11) The letter provided by Mr Nicholas Mendes dated21 September 2011 has been considered and it is noted that he again confirms that you were baptised on18 November 2011 . He confirms that you have continued to attend church meetings locally and nationally, both on Sundays and mid week since that time. Immigration Judge Herwald found that he was not convinced you had converted in any real or meaningful sense and that your outward appearance of conversion was simply to bolster your claim for asylum. In addition to this he found that you had been assisted in your deception by your sister. The Immigration Judge found your attendance of church meetings does not show that you have converted, merely that you have sought to create the impression that you have done so. 12) It is therefore concluded that your further submissions on this point, again mere1y amount to a disagreement with the Immigration Judge and are a reiteration of your earlier claim. It is therefore considered your submissions do not create a realistic prospect of success before an Immigration Judge. In so deciding, the factual substance and detail of your claim has been considered. 13) Your son’s medical conditions have been considered at length in the decision letter of14 October 2011 at paragraphs 22 to 35. It is considered that this letter provided sound, thorough and detailed reasoning for considering that this aspect of your further submissions do not create a realistic prospect of success before an Immigration Judge. It is considered that the claim cannot on any legitimate view succeed. 14) In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended). It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the United Kingdom and that you do not qualify for Humanitarian Protection. Therefore your application has also been refused under paragraph 339F of the Immigration Rules. Your application has been recorded as determined on14 October 2011 . 15) In addition, after considering all the evidence available to him, the Secretary of State has decided that your asylum claim is clearly unfounded and hereby certifies it as such undersection 94(2) of the Nationality Immigration and Asylum Act 2002 . 16) Furthermore, it is not considered on the information available that your removal would be contrary to the United Kingdom’s obligations under the ECHR. 17) In addition, after considering all the evidence available to him, the Secretary of State has decided that your human rights claim is clearly unfounded and hereby certifies it as such undersection 94(2) of the Nationality Immigration and Asylum Act 2002 . 18) As your asylum and human rights claims have been certified as clearly unfounded, you may not appeal while in the United Kingdom. 19) On the basis of the information you have provided, it has been concluded that removing you from the United Kingdom or requiring you to leave would not be contrary to the United Kingdom’s obligations under the ECHR.”
“ If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded……..”
"[The test] must always be whether, comparing the new claim with that earlier rejected and excluding material on which the claimant could reasonably have been expected to rely on the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken on the new claim despite the unfavourable conclusion reached on the earlier claim." (See also R v SSHD ex p. Boybeyi [1997] Imm AR 491.) 34 Next, Mr Singh identified those cases in which it is accepted that the first determination should be treated as a miscarriage of justice. In these circumstances, where the appellant has not been at fault, the fresh notice of refusal is issued by the SSHD, and a fresh right of appeal is created. (R v SSHD ex p. Syed Mohammed Kazmi [1995] Imm AR 73.) The third category concerned the system for certification for appeals where previous appeal proceedings had already taken place, or where repeated claims were characterised as manifestly unfounded. Mr Singh pointed out that in R (Yogathas) v SSHD[2003] 1 AC 920 , Lord Hope described the concept of "manifest unfoundedness" as one where a claim was "so clearly without substance that the appeal would be bound to fail"
"The proper approach was to consider the wider interests of justice. This must be right both in asylum cases and in those where Articles 2 or 3 are invoked. After all, one has to consider the context in which these cases are brought. … This further evidence is credible and it is potentially significant, going much further than the material which the IAT had. I for my part am quite satisfied that the wider interests of justice do require the fresh evidence to be considered by this Court." 36 Each of the categories identified by Mr Singh is characterised by the sensitivity of the issues which are engaged. Put starkly, the wrong decision may condemn an unsuccessful appellant to persecution, torture, or death. That said, however, in our judgment the guidance given by the IAT does not overlook these disturbing realities, nor imply, let alone suggest, that adjudicators considering a fresh application in circumstances like the present should be blind to them. 37 In his submissions Mr Singh addressed particular criticism of guidelines 5 and 7. In relation to guideline 5, he suggests that on one construction, this may penalise an applicant involved in a second application, for failing to produce evidence which could have been available at the first application but was not. This is not how the guidance reads. This part of the guidance is intended to contrast the problematic issue of credibility (addressed in guideline 4) which may arise when an applicant has failed to give evidence of material known to or personal to himself and his own condition, and then seeks to add something about these matters in the course of a second application. The risk identified in guideline 4 is embellishment or fabrication. In short, its purpose is to give a warning in these broad terms: if the evidence is true, why was it not given at the first hearing? Even so, it does not automatically follow that the evidence must be untrue. The words "not usually" expressly demonstrate that the guidance is not intended to impose a credibility finding on the second adjudicator. It is however sensible to seek an explanation for the omission. One such explanation, referred to in guideline 7, may be the low quality of the representation before the first adjudicator. 38 By contrast with the "great circumspection" with which guideline 4 is concerned, guideline 5 merely suggests a degree of "caution"